This vote was on whether to table (kill) an amendment by David Vitter, R-La., that would allow the prevailing side in certain civil consumer product safety cases – whether plaintiff or defendant – to recover attorneys fees associated with the case. The amendment was offered to a bill that would overhaul the Consumer Product Safety Commission (CPSC).

“My amendment simply says that a judge can award reasonable costs and attorney’s fees from the loser to the winner no matter which side wins and loses. So if an attorney general brings an action and prevails on that consumer product safety action, then it is in the judge’s discretion to award costs and attorney’s fees from the losing private party to the attorney general. But fairly, if the opposite happens, if the private party is vindicated, if the private party goes through this litigation … then it is also within the discretion of the judge … that the private party be awarded reasonable costs and attorney’s fees from the losing side; in that case, the attorney general,” Vitter said, adding that this may help prevent frivolous lawsuits.

Mark Pryor, D-Ark., said that the American judicial system is based in part on the idea that each side should pay its own attorneys’ fees, and that this amendment would thwart more than 200 years of practice. He also said that states’ attorneys general are not “are not like some lawyer off the street. These are, by and large, elected officials” who should be able to pursue cases they think are in the public’s best interest.

“It is very important for several reasons. One is, in this case, if the loser has to pay the attorney’s fees, we know who the loser is, don’t we? It is the State taxpayers. It is not the Federal taxpayers. It is the State taxpayers, our people,” Pryor said. “When you have a matter as important as the public safety and welfare of the people of your State, the attorney general should be allowed to pursue getting these dangerous products off the shelves, keeping their States safe for their people without having to be concerned about this change in the American legal system that Senator Vitter is recommending.”

By a vote of 56-39, the Senate killed Vitter’s amendment. Every Democrat present voted to defeat the amendment. Of Republicans present, all but eight voted to preserve the amendment. The end result was that the amendment that would have given judges discretion to award attorneys fees to either the plaintiff or the defendant in certain consumer product safety cases was defeated.